Eradicating Ecocide: A Critical Appraisal

The following evaluation of the Ecocide proposals is by Dr. Karen Hulme, senior lecturer at the School of Law, University of Essex and author of WarTorn Environment: Interpreting the Legal Threshold, Martinus Nijhoff, 2004.

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This post will provide a critical appraisal of the concept of ecocide under international law.

International environmental law is largely governed by Principle 21 of the 1972 Stockholm Declaration, which states that:

“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

Principle 21 thus implies that states are sovereign over their own natural resources and are allowed to exploit those resources provided that in doing so they do not cause significant damage to other states or the ‘global commons’. Clearly, this basic principle does little by way of preventing damage within a state and has therefore been supplemented by a tranche of treaties which require states to protect the environment within their borders.These include the 1992 Biological Diversity Convention, the 1971 Wetlands Convention and the 1972 UNESCO Cultural Heritage Convention, as well as others that have a broader, more global reach yet still require domestic implementation, such as the 1992 Climate Change Convention, the 1973 Convention on Trade in Endangered Species and the 1946 Whaling Convention regime.

These treaties and regimes notwithstanding, global environmental degradation continues apace. As a response, Polly Higgins defined a notion of ‘ecocide’ in 2010.For the purposes of international law, Polly defines Ecocide as:

“the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.”

Polly’s campaigning on this notion has brought to the world’s attention such environmental tragedies as the oil extraction from the Canadian Athabasca tar sands. The US Senate recently voted to reject the Keystone XL pipeline which is proposed to transport the oil extracted from the Canadian tar sands to Texas, although with weighty Republican political backing the issue will undoubtedly return to the Senate in the near future. Other possible examples of ecocide include the BP oil spill in the Mexican Gulf in 2010, Chevron’s oil devastation in Ecuador, Shell’s destruction of the Niger Delta as well as far too many examples from around the globe of environmentally-destructive mining, deforestation and damming projects. With the Rio+20 conference almost in our midst can a crime of ecocide finally be realized?

The above definition of ecocide poses a variety of problems. First, it is clear that any international instrument, including the proposed notion of ecocide requires state consent – and clearly it is those recalcitrant states that are causing environmental damage that are least likely to ratify such a treaty. Second, with regard to proposals within the ecocide bill of ‘non-human’ (or natural) causes of harm or those that cannot be proven to have emanated from a particular state, these are, it has to be said, unlikely to be adopted in any international instrument, let alone one mandating criminal sanctions. The remainder of the definition would probably not cause too many problems for acceptance although ‘peaceful enjoyment’ is not a particularly concrete notion. Lastly, the notion of a state ‘crime’ that is likely to result from the application of the above definition is similarly vague. It must be remembered that in the 2001 Articles of State Responsibility the notion of state ‘crimes’ was rejected[i] In an early ILC draft (1996) of the Articles on State Responsibility, Article 19(3)(d) suggested that an international crime may result from “a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.” This formulation of a ‘crime’ gained some acceptance and was undoubtedly a response to the heightened sense of environmental awareness during the early 1990s. Yet, its ultimate demise as well as the rejection of the 1994 Draft Principles of UN Special Rapporteur Ksentini on the right to a healthy environment reflect, lamentably, a more limited, conservative approach by states to how we value the environment and protect it from harm. Prior experience also suggests that political will is not likely to favour such mechanisms. For example, acceptance of the 1998 Council of Europe Convention on the Protection of the Environment through Criminal Law has been extremely poor (3 state ratifications to date).

This is not to say that the notion of environmental protection is unlikely to be adequately enshrined in state policy. Many states do positively promote and protect the environment. Many NGOs are now well able to promote the environment in all spheres of human development and protection, and greater use of litigation against companies in states where they are headquartered is proving to be invaluable. Furthermore, the right to a healthy environment has become acceptable to over 100 states who, having enshrined such a human right in their constitution, provide an encouraging measure of environmental protection.

With regard to strengthening the legal provisions for international environmental protection, an avenue for the notion of ecocide may thus lie in either the soft law instrument which will inevitably emerge from Rio+20 or in an international instrument providing a new way for states to hold companies (and their CEOs) criminally liable for environmental damage (many states provide for such liability already).

So much for peacetime mechanisms for international environmental protection. Peacetime legal obligations are generally much weaker during situations of armed conflict, when the laws of armed conflict are generally said to represent ‘lex specialis’ or ‘special/temporal law’ which is viewed as displacing or redefining peacetime obligations. Higgins, however, uses a number of wartime protections as evidence or legal authority to bolster the acceptability of the ecocide notion in peacetime . The following sections will thus indicate why these wartime provisions do not provide the measure of support suggested by Higgins for a broad-base of acceptance of the notion of ecocide in peacetime.

The notion of ecocide became an emotive term coined in the aftermath of the Vietnam War, and referred to the damage caused by the American environmentally-destructive tactics of herbicidal defoliation and the use of Rome Ploughs. It was enshrined as a crime in the domestic laws of many Communist states (Russia, Vietnam, Belarus, Kazakhstan, Kyrgyzstan, Armenia etc), usually in the form that “destroying the natural environment, whether committed in time of peace or war, constitutes a crime against humanity” (Vietnam) or “massive destruction of the fauna and flora, contamination of the atmosphere or water resources, as well as other acts capable of causing an ecological catastrophe, constitutes a crime against the peace and security of mankind” (Russia).

The wartime prohibition on environmental destruction was specifically included in the 1977 Additional Protocol I to the Geneva Conventions at Article 35(3), although it has to be said that it was drafted in such as way as to provide very little, if any, protection whatsoever for the environment. Article 35(3) of the 1977 Protocol stipulates:

“It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.”

On this occasion the term ‘long-term’ was defined to mean ‘decades, 20 or 30 years as being a minimum’. Despite the phenomenal shift witnessed in peacetime environmental policy since the 1970s, a similar ‘greening’ of wartime provisions has been largely absent. Thus it was a deliberate action by dominant states at the negotiating conference to create only weak environmental protection obligations in wartime, and this attitude has continued to dominate discussions since. To exemplify this conclusion, it is often recalled by states that the oil-well destruction during the 1991 Persian Gulf Conflict would not fulfill the threshold of damage; some even doubt its applicability at all for conventional warfare (i.e., outside the use of chemical, nuclear and biological warfare – note that chemical and biological weapons are absolutely and comprehensively prohibited and the environmental prohibition itself probably does not apply to nuclear weapons anyway). Thus, it is often stated that this particular provision provides little, if any, actual environmental protection during armed conflict.

The 1976 ENMOD Convention prohibits the hostile manipulation of the environment so as to cause damage to an enemy state. The full provision is thus,

“Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.” (Article I(1), ENMOD Convention)

However, inherent in the Convention’s prohibition are its limitations. The Convention is about artificial rain-making, which is used as a wartime tactic to flood enemy supply routes, or the use of a nuclear device to trigger an earthquake or a hole in the Ozone layer above the enemy to ‘burn’ enemy troops. While cloud-seeding has been used in peacetime (note the use in the Beijing Olympics to move clouds away from the stadium), its military use was easily prohibited in the aftermath of the Vietnam War (note the US cloud-seeding tactics). Furthermore, it is unclear how Higgins is using the ENMOD Convention in her theory. Certainly, it does contain a low threshold of damage – i.e. it only requires the resultant harm to be ‘widespread, long-lasting or severe’, which terms are defined at a very low level [for example ‘long-lasting’ refers to ‘several months or more, or approximately a season’]. Higgins, however, appears to suggest that the ENMOD definitions can be transposed into a crime of ecocide for oversight by the International Criminal Court. With respect, it is undoubtedly the case that the very low threshold of harm contained in the ENMOD Convention reflects the preposterous notion that any state would use such tactics. Where similar terms have been used in other laws of war provisions their meaning has not been set at such a low threshold.

The notion of ecocide did not make it into the 1998 Rome Statute of the International Criminal Court, although wartime environmental destruction is included where such damage was (1) intentionally caused, (2) fulfils the very high threshold (of Article 35(3) of the 1977 Protocol – above) of ‘widespread, long-term and severe’ damage and (3) is also disproportionate to the military advantage anticipated from the attack (See Article 8(2)(b)(iv)). Clearly here the Statute has adopted the terms of Article 35(3) of the 1977 Protocol, and added an additional criterion of disproportionately. This additional element serves to further restrict the scope of the crime. And to this extent international law already contains a crime of ecocide, albeit confined only to situations of international armed conflict (i.e. not ‘civil wars’).

As for the other crimes listed in the ICC Statute, environmental destruction of a nature and scale as to constitute ‘genocide’ cannot be completely ruled out of the Statute’s definition, but the definition of ‘crimes against humanity’ appears to be far less amenable. This is not to say that the ICC would not relish an opportunity to expand on the notions contained in the Statute but with a quickly expanding case list and the requirement for it to consider only the gravest of international crimes it is unlikely to be doing so any time soon. Another point to remember regarding ICC jurisdiction at present is that it concerns only individual criminal responsibility (not states and not companies) and requires jurisdiction to be found on the basis of either treaty ratification or reference made via the Security Council – which all serve to limit severely the list of potential defendants.

In conclusion, this author is quite skeptical of the acceptance of a crime of ecocide at the international level, emanating either from existing peacetime obligations or from the adoption of a new treaty (or amendment to the ICC). This author does not believe that wartime protections of the environment offer value for the development of a peacetime concept of ecocide. Indeed, the three-fold threshold of harm coupled with the conjunction (i.e. widespread, long-term and severe) has severely incapacitated the applicability of that provision in wartime. Consequently, the wartime experience should serve as a warning to others who seek to adopt a three-fold threshold of harm when the simpler, one-word threshold of ‘severe’ damage can cover all dimensions of duration, breadth and severity of harm in a more flexible way.

[i] As it was more recently in the 2007 ICJ case concerning the Application of the Genocide Convention (Bosnia-Herzegovina v Yugoslavia).

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